Customs, Excise and Gold Tribunal - Tamil Nadu
Thakurdas Sons vs Commissioner Of Customs, Chennai on 29 January, 2002
Equivalent citations: 2002(144)ELT139(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. The party's appeals and the Revenue appeal arise out of the common Order-in-Original No. S.59/254/93 Gr. 7, dated 31-1-1996 passed by the Commissioner of Customs, Chennai. The Commissioner, in the impugned order, ordered for increasing the value of the imported metallic fittings by 50% of the declared value. The importer has declared various items ranging from HK $ 2 to $ 18 per dozen and the goods in question were of Chinese origin. The Department did not accept the declaration in view of the fact that by the Bill of Entry No. 44106 out of declared 5000 dozens of Metallic Fittings, on examination, it was found 600 Dozen Locks and balances were fittings. In Bill of Entry No. 44111, out of the declared 5500 dozens metallic fittings, the officers found 2470 dozen locks, 3000 dozen metallic fittings. Therefore market enquiries were conducted and based on the same, a show cause notice was issued proposing to enhance the value of the items to Rs. 8/- per piece. It was also contended by the Revenue that locks cannot be considered as metallic fittings and therefore, there is clear violation of the licence and the goods cannot be released free of duty and that they were liable for confiscation and imposition of penalty. Therefore, the Commissioner, after recording all the facts in 39 paragraphs, has given brief order. In the brief order, he has noted that no data is available to fix the value under Rules 5, 6 and 7 of the Customs Valuation Rules. The ld. Counsel further submits that the goods are of Chinese origin accepting the submissions to enhance the value by 50% of the declared value. By taking into consideration these facts i.e. the nature, type, quality and usage of the items and also the contemporaneous value available or produced by the same parties he has passed the impugned order. However, mere is no discussion on the state of contemporaneous value in the order there is also no discussion as to how the locks could be considered as metallic fittings and the ground urged by the Revenue the same cannot be treated as metallic fittings and the value was required to be determined on the basis of the market survey done to enhance the same to Rs. 8/- per piece. Referring to the findings at para 45 the ld. Counsel states that there is no evidence for its confirmation. The Revenue is aggrieved with the order and contend that as admittedly the declaration is not correct, therefore the metallic fittings containing locks, cannot be treated "metallic fittings" and therefore the consignments are required to have been confiscated, and proper fine and penalty should have been imposed.
13. The party is also aggrieved with the order and contended that there is no evidence of contemporaneous imports to enhance the value of the item by 50% value declared. In the absence of furnishing the copy of market enquiry and non availability of contemporaneous import produced by the Revenue, the value cannot be enhanced by 50% and hence these appeals.
4. Heard Shri Prameela, ld. Counsel for the appellants/ Respondents and Shri Jayachandran, ld. DR for the Revenue.
14. The ld. Counsel submits that they have challenged the correctness of the order. They contend that lock is also metallic fittings. Further, ld. Counsel fairly submits that the ld. Commissioner in para 45 of the impugned order has not given the findings on this aspect of the matter but has merely directed for enhancing of the value by 50% of the declared value which according to her is without any basis or evidence. She reiterates the grounds taken by the importer that the item imported is eligible for duty free clearance in terms of the advance licence produced. It is her submission that locks are also covered within the meaning "Metallic Fittings" and there is no need to show any nexus by producing the triplicate copy of the licence. She submits that the locks also come within the definition of "metallic fittings". She also relies on the decision of the Tribunal rendered in the case of Good luck Industries v. CC, Calcutta reported in 1999 (108) E.L.T. 818. The Commissioner cannot go beyond the scope of show cause notice and also alleged the licence transfer by original licencee to appellants in such circumstances burden of proof is to fulfilment of the export obligation is on the original licenced importer. She refers to various portions of this order to draw support to his case. She submits that this judgment has since been confirmed by the Apex Court.
6. The ld. DR submits that the Commissioner has gone beyond terms of the show cause notice and the order is not a speaking order. As the finding is restricted to only to a portion of the impugned order and as no finding has been given and as per in the show cause notice the department is also aggrieved. Therefore the order being not a speaking order is required to be set aside and the matter remanded for de novo consideration for reconsideration as there was violation of import policy. That the imported consignment was liable for confiscation and for imposition of fine and penalty. He also contends that the department had produced the market survey report and the assessee's evidence of contemporaneous import and therefore the value was required to be enhanced. He seeks for setting aside the impugned and for remand of the matter for de novo consideration. Ld. objection for all the three orders being allowed by way of remand.
7. After careful consideration of the submissions made by both the sides we notice that the ld. Commissioner has recorded all the facts in 39 paragraphs in 24 pages. However, his finding is restricted only in para 45. We observe that this finding does not answer all the points brought out in the SCN. Both sides clearly agree that the order is not a speaking order. The Respondent contention through record has not been answered. We notice that evidence has been placed by the Revenue in form of Market enquiry to hold that the item in question cannot be created as metallic fittings was not furnished to importer. Thus there is clear violation of Principles of Natural Justice. Enhancement even of 50% of the value is also not in terms of the allegations made out in the show cause notice and therefore the basis for enhancing the value is not acceptable. In view of this and also in view of the facts that the appellants are seeking clearance on the duty free basis in terms of the cited judgments, the matter is required to go back to the original authority for de novo consideration. We set aside the impugned order and allow all the three appeals by way of remand with a direction to give clear direction to furnish a copy of the market survey to the importer and readjudicate the same in terms of law to decide the case in the light of the judgment prevailing on the issue. The Commissioner shall give a clear findings on all the allegations made in the SCN. Thus the three appeals are allowed by way of remand.
1 Paragraph number as per certified copy.